1
EXHIBIT 4.02
FIFTH RESTATED INVESTORS' RIGHTS AGREEMENT
This Fifth Restated Investors' Rights Agreement (this "Agreement") is
made and entered into as of March 31, 2000 by and among Transmeta Corporation, a
California corporation (the "Company"); the persons and entities named on
Exhibit A attached hereto (the "Investors"); solely with respect to Section 4
below, the Common Shareholders named on Exhibit B attached hereto (the "Common
Holders"); and solely with respect to Section 5 below, the Principal Common
Shareholders named on Exhibit C attached hereto.
R E C I T A L S
A. Certain of the Investors (the "Series B Investors") previously
purchased from the Company shares of the Company's Series B Preferred Stock (the
"Series B Stock") and warrants (the "Warrants") to purchase shares of the
Company's Series C Preferred Stock (the "Series C Stock") pursuant to that
certain Series B Preferred Stock and Series C Preferred Stock Warrant Purchase
Agreement, dated as of December 19, 1995, by and among the Company and the
Series B Investors (the "Series B Agreement"). In connection with the purchase
of Series B Stock and the Warrants, the Series B Investors were granted certain
information rights, registration rights, rights of first refusal and rights of
co-sale under that certain Restated Investors' Rights Agreement, dated as of
December 19, 1995, by and among the Company, the Series B Investors and the
other parties thereto (the "First Restated Rights Agreement"). The Series B
Investors subsequently exercised in full the Warrants to purchase Series C
Stock.
B. Certain of the Investors (the "Series D Investors") previously
purchased from the Company shares of the Company's Series D Preferred Stock (the
"Series D Stock") pursuant to that certain Series D Preferred Stock Purchase
Agreement, dated as of April 4, 1997, as amended, by and among the Company and
the Series D Investors (the "Series D Agreement"). In connection with the
purchase of Series D Stock, the Series B Investors and the Series D Investors
were granted certain information rights, registration rights, rights of first
refusal and rights of co-sale under that certain Second Restated Investors'
Rights Agreement, dated as of April 4, 1997, as amended as of December 17, 1997,
by and among the Company, the Series B Investors, the Series D Investors and the
other parties thereto (the "Second Restated Rights Agreement"), which Second
Restated Rights Agreement amended, restated, replaced and terminated in its
entirety the First Restated Rights Agreement.
C. Certain of the Investors (the "Series E Investors") previously
purchased from the Company shares of the Company's Series E Preferred Stock (the
"Series E Stock") pursuant to that certain Series E Preferred Stock Purchase
Agreement, dated as of June 17, 1998, by and among the Company and the Series E
Investors (the "Series E Agreement"). In connection with the purchase of Series
E Stock, the Series B Investors, the Series D Investors and the Series E
Investors were granted certain information rights, registration rights, rights
of first refusal and rights of co-sale under that certain Third Restated
Investors' Rights Agreement, dated as of June 17, 1998, by and among the
Company, the Prior Investors and the other parties thereto (the "Third Restated
Rights Agreement"), which Third Restated Rights Agreement amended, restated,
replaced and terminated in its entirety the Second Restated Rights Agreement.
D. Certain of the Investors (the "Series F Investors") previously
purchased from the Company shares of the Company's Series F Preferred Stock (the
"Series F Stock") pursuant to that
2
certain Series F Preferred Stock Purchase Agreement, dated as of July 2, 1999,
by and among the Company and the Series F Investors (the "Series F Agreement").
In connection with the purchase of Series F Stock, the Series B Investors, the
Series D Investors, the Series E Investors and the Series F Investors
(collectively, the "Prior Investors") were granted certain information rights,
registration rights, rights of first refusal and rights of co-sale under that
certain Fourth Restated Investors' Rights Agreement, dated as of July 2, 1999,
as amended as of October 18, 1999, by and among the Company, the Prior Investors
and the other parties thereto (as amended, the "Fourth Restated Rights
Agreement"), which Fourth Restated Rights Agreement amended, restated, replaced
and terminated in its entirety the Third Restated Rights Agreement.
E. International Business Machines ("IBM" which, for purposes of this
Agreement, is included herein as a "Prior Investor") was issued by the Company a
certain Restated and Amended Convertible Promissory Note dated October 29, 1999
(the "IBM Note"), which is currently convertible into 600,000 shares (on a post
May 12, 1998 split basis) of the Company's Common Stock. In connection with the
issuance of the IBM Note, IBM was granted certain piggyback registration rights
under the Fourth Restated Rights Agreement.
F. Certain of the Investors (the "New Investors") have agreed to
purchase from the Company shares of the Company's Series G Preferred Stock (the
"Series G Stock") pursuant to that certain Series G Preferred Stock Purchase
Agreement, dated of even date herewith, by and among the Company and the New
Investors (the "Series G Agreement"). The Series G Agreement provides that, as a
condition to the New Investors' purchase of the Series G Stock, the Company will
enter into this Agreement and the New Investors will be granted the rights set
forth herein.
G. The Company and the Prior Investors desire for the New Investors to
purchase the Series G Stock and, to induce such purchase, are willing to amend,
restate, replace and terminate the Fourth Rights Agreement as set forth below.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. INFORMATION RIGHTS.
1.1 Financial Information. Commencing on the date of this
Agreement, for so long as an Investor (together with related Investors) holds at
least 100,000 shares of (a) Series B Stock issued to such Investor under the
Series B Agreement, or (b) Series C Stock issued to such Investor under the
Series B Agreement, or (c) Series D Stock issued to such Investor under the
Series D Agreement, or (d) Series E Stock issued to such Investor under the
Series E Agreement, or (e) Series F Stock issued to such Investor under the
Series F Agreement, or (f) Series G Stock issued to such Investor under the
Series G Agreement, or (g) the equivalent number (on an as-converted basis) of
shares of Common Stock of the Company ("Common Stock") issued upon the
conversion of such shares of Series B Stock, Series C Stock, Series D Stock,
Series E Stock, Series F Stock and/or Series G Stock ("Conversion Stock"), the
Company will furnish to such Investor:
(i) Quarterly Reports. As soon as practicable, and in
any event within forty-five (45) days after the end of each fiscal quarter of
the Company (except the last quarter of the Company's fiscal year), unaudited
financial statements of the Company, including an unaudited balance sheet, an
unaudited statement of income and an unaudited statement of cash flows, for such
fiscal quarter.
-2-
3
(ii) Annual Reports. As soon as practicable, and in any
event within one hundred twenty (120) days after the end of each fiscal year of
the Company, a consolidated balance sheet as of the end of such fiscal year, a
consolidated statement of income and a consolidated statement of cash flows of
the Company and its subsidiaries for such year, setting forth in each case in
comparative form the figures from the Company's previous fiscal year (if any),
all prepared in accordance with generally accepted accounting principles and
practices and audited by nationally recognized independent certified public
accountants.
(iii) Annual Financial Budget. As soon as practicable,
and in any event within one hundred twenty (120) days after the end of each
fiscal year of the Company, an annual financial budget for the fiscal year in
which such budget is delivered, and, within thirty (30) days after being
furnished to the Board of Directors of the Company, a copy of any revised
versions of such annual financial budget.
1.2 Confidentiality. Each Investor will hold all information
received pursuant to this Section 1 in confidence, and will not, except to the
extent such information may otherwise, through no breach by such Investor of its
obligations hereunder, become public, and except as may be required of such
Investor by law (any such disclosure to be noticed to the Company by such
Investor reasonably in advance of the date of such disclosure), use any of such
information, or disclose any of such information to (a) any third party, or (b)
to personnel within such Investor who are directly engaged in product
development and/or marketing activities competitive with the business of the
Company (but not including the financial, accounting or operations planning
staff personnel of such Investor).
1.3 Termination of Certain Rights. The Company's obligations
under Section 1.1 hereof will terminate upon the closing of the Company's
initial public offering of its Common Stock (the "IPO") pursuant to an effective
registration statement filed under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), in which the managing underwriter will be a reputable
investment banking firm as determined in good faith by the Company's Board of
Directors.
2. REGISTRATION RIGHTS.
2.1 Definitions. For purposes of this Section 2:
(a) Registration. The terms "register," "registered,"
and "registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement.
(b) Registrable Securities. The term "Registrable
Securities" means: (i) all shares of Common Stock of the Company issued or
issuable upon the conversion of any shares of (A) Series B Stock issued under
the Series B Agreement, (B) Series C Stock issued under the Series B Agreement,
(C) Series D Stock issued under the Series D Agreement, (D) Series E Stock
issued under the Series E Agreement, (E) Series F Stock issued under the Series
F Agreement and (F) Series G Stock issued under the Series G Agreement (as such
agreement may hereafter be amended from time to time), in each case, that are
now owned or may hereafter be acquired by any Investor or any Investor's
permitted successors and assigns; and (ii) any shares of Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, all such shares of
Common Stock described in clause (i) of this sentence; excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
rights under this
-3-
4
Section 2 are not assigned in accordance with this Agreement or any Registrable
Securities sold to the public or sold pursuant to Rule 144 promulgated under the
Securities Act. Additionally, "Registrable Securities" also includes, for
purposes only of Sections 2.3, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 7.2, 7.4,
7.6, 7.7, 7.8, 7.13, 7.14, 7.15 and 7.16 of this Agreement: (i) all shares of
Common Stock of the Company issued or issuable upon the conversion of the IBM
Note, in each case, that are now owned or may hereafter be acquired by IBM; and
(ii) any shares of Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, all such shares of Common Stock described in clause (i) of this
sentence; excluding in all cases, however, any Registrable Securities sold by
IBM to the public, pursuant to Rule 144 promulgated under the Securities Act or
otherwise.
(c) Registrable Securities then outstanding. The number
of shares of "Registrable Securities Then Outstanding" will mean the number of
shares of Common Stock which are Registrable Securities and (i) are then issued
and outstanding or (ii) are then issuable pursuant to the exercise or conversion
of then outstanding and then exercisable options, warrants or convertible
securities.
(d) Holder. For purposes of this Section 2, the term
"Holder" means any person owning of record Registrable Securities that have not
been sold to the public or pursuant to Rule 144 promulgated under the Securities
Act or any assignee of record of such Registrable Securities to whom rights
under this Section 2 have been duly assigned in accordance with this Agreement;
provided, however, that for purposes of this Agreement, a record holder of
shares of Series B Stock, Series C Stock, Series D Stock, Series E Stock, Series
F Stock or Series G Stock or the IBM Note, in each case convertible into such
Registrable Securities, will be deemed to be the Holder of such Registrable
Securities; provided further, however, that IBM will be deemed a Holder
hereunder with respect to the IBM Note or Registrable Securities into which the
IBM Note is convertible for purposes only of Sections 2.3, 2.5, 2.6, 2.7, 2.8,
2.9, 2.10, 2.11, 7.2, 7.4, 7.6, 7.7, 7.8, 7.13, 7.14, 7.15 and 7.16 of this
Agreement.
(e) Form S-3. The term "Form S-3" means such form under
the Securities Act as is in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the SEC which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
(f) SEC. The term "SEC" or "Commission" means the U.S.
Securities and Exchange Commission.
2.2 Demand Registration.
(a) Request by Holders. If the Company receives at any
time after the earlier of (i) July 1, 2001, or (ii) one hundred eighty (180)
days after the effective date of the Company's initial public offering of its
securities pursuant to a registration filed under the Securities Act, a written
request from the Holders of at least twenty percent (20%) of the Registrable
Securities then outstanding that the Company file a registration statement under
the Securities Act covering the registration of Registrable Securities pursuant
to this Section 2.2, then the Company will, within ten (10) business days of the
receipt of such written request, give written notice of such request ("Request
Notice") to all Holders, and will use its best efforts to effect, as soon as
practicable, the registration under the Securities Act of all Registrable
Securities which Holders request to be registered and included in such
registration by written notice given such Holders to the Company
-4-
5
within twenty (20) days after receipt of the Request Notice, subject only to the
limitations of this Section 2.2; provided that the Registrable Securities
requested by all Holders to be registered pursuant to the first registration
effected pursuant to this Section 2.2 must have an anticipated aggregate public
offering price (before any underwriting discounts and commissions) of not less
than $25,000,000.00; provided further that the Registrable Securities requested
by all Holders to be registered pursuant to the second registration effected
pursuant to this Section 2.2 must have an anticipated aggregate public offering
price (before any underwriting discounts and commissions) of not less than
$15,000,000.00.
(b) Underwriting. If the Holders initiating the
registration request under this Section 2.2 ("Initiating Holders") intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, then they will so advise the Company as a part of their request
made pursuant to this Section 2.2 and the Company will include such information
in the written notice referred to in Section 2.2(a). In such event, the right of
any Holder to include his Registrable Securities in such registration will be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting will enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 2.2, if the underwriter(s) advise(s) the Company
in writing that marketing factors require a limitation of the number of
securities to be underwritten then the Company will so advise all Holders of
Registrable Securities which would otherwise be registered and underwritten
pursuant hereto, and the number of Registrable Securities that may be included
in the underwriting will be reduced as required by the underwriter(s) and
allocated among the Holders of Registrable Securities on a pro rata basis
according to the number of Registrable Securities then outstanding held by each
Holder requesting registration (including the Initiating Holders); provided,
however, that the number of shares of Registrable Securities to be included in
such underwriting and registration will not be reduced unless all other
securities of the Company are first entirely excluded from the underwriting and
registration. Any Registrable Securities excluded and withdrawn from such
underwriting will be withdrawn from the registration.
(c) Maximum Number of Demand Registrations. The Company
is obligated to effect only two (2) such registrations pursuant to this Section
2.2.
(d) Deferral. Notwithstanding the foregoing, if the
Company will furnish to Holders requesting the filing of a registration
statement pursuant to this Section 2.2, a certificate signed by the President or
Chief Executive Officer of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its shareholders for such registration statement to be filed and
it is therefore essential to defer the filing of such registration statement,
then the Company will have the right to defer such filing for a period of not
more than one hundred twenty (120) days after receipt of the request of the
Initiating Holders; provided, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
(e) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 2.2, including without limitation all
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company (but excluding underwriters' discounts
and commissions), will be borne by the Company. Each Holder participating in a
registration pursuant to this Section 2.2 will bear such Holder's proportionate
share (based on the
-5-
6
total number of shares sold in such registration other than for the account of
the Company) of all discounts, commissions or other amounts payable to
underwriters or brokers in connection with such offering. Notwithstanding the
foregoing, the Company will not be required to pay for any expenses of any
registration proceeding begun pursuant to this Section 2.2 if the registration
request is subsequently withdrawn at the request of the Holders of a majority of
the Registrable Securities to be registered, unless the Holders of a majority of
the Registrable Securities then outstanding agree to forfeit their right to one
(1) demand registration pursuant to this Section 2.2 (in which case such right
will be forfeited by all Holders of Registrable Securities); provided, further,
however, that if at the time of such withdrawal, the Holders have learned of a
material adverse change in the condition, business, or prospects of the Company
not known to the Holders at the time of their request for such registration and
have withdrawn their request for registration with reasonable promptness after
learning of such material adverse change, then the Holders will not be required
to pay any of such expenses and will retain their rights pursuant to this
Section 2.2.
2.3 Piggyback Registrations. The Company will notify all Holders
of Registrable Securities in writing at least thirty (30) days prior to filing
any registration statement under the Securities Act for purposes of effecting a
public offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating (1) to any registration
under Section 2.2 or Section 2.4 of this Agreement or (2) to any employee or
director benefit plan, stock purchase agreement or stock option agreement
(whether or not exercised), or the resale of shares purchased thereunder, or (3)
to a corporate reorganization) and will afford each such Holder an opportunity
to include in such registration statement all or any part of the Registrable
Securities then held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by
such Holder will, within twenty (20) days after receipt of the above-described
notice from the Company, so notify the Company in writing, and in such notice
will inform the Company of the number of Registrable Securities such Holder
wishes to include in such registration statement. If a Holder decides not to
include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder will nevertheless continue to have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
(a) Underwriting. If a registration statement under
which the Company gives notice under this Section 2.3 is for an underwritten
offering, then the Company will so advise the Holders of Registrable Securities.
In such event, the right of any such Holder's Registrable Securities to be
included in a registration pursuant to this Section 2.3 will be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable Securities through
such underwriting will enter into an underwriting agreement in customary form
with the managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing
underwriter determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting will be allocated, first, to the
Company, and second, to each of the Holders requesting inclusion of their
Registrable Securities in such registration statement on a pro rata basis based
on the total number of Registrable Securities then held by each such Holder,
provided, however, that the right of the underwriters to exclude shares
(including Registrable Securities) from
-6-
7
the registration and underwriting as described above will be restricted so that
(i) the number of Registrable Securities included in any such registration is
not reduced below twenty percent (20%) of the shares included in the
registration, except for a (1) registration relating to the Company's initial
public offering or (2) a registration pursuant to the first registration
statement filed and declared effective after the Company's initial public
offering to register the sale of the Company's shares for its own account or (3)
an offering solely by shareholders of the Company exercising demand registration
rights, in each such case from which all Registrable Securities may be excluded,
and (ii) all shares that are not Registrable Securities and are held by persons
who are employees or directors of the Company (or any subsidiary of the Company)
will first be excluded from such registration and underwriting before any
Registrable Securities are so excluded. If any Holder disapproves of the terms
of any such underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the underwriter, delivered at least ten (10) business
days prior to the effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting will be excluded and
withdrawn from the registration. For any Holder which is a partnership or
corporation, the partners, retired partners and shareholders of such Holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons will be deemed to be a
single "Holder", and any pro rata reduction with respect to such "Holder" will
be based upon the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such "Holder", as defined in this
sentence.
(b) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 2.3 (excluding underwriters' and brokers'
discounts and commissions), including, without limitation, all federal and "blue
sky" registration and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company will be borne by the Company.
2.4 Form S-3 Registration. In case the Company will receive from
any Holder or Holders of Registrable Securities a written request or requests
that the Company effect a registration on Form S-3 and any related qualification
or compliance with respect to all or a part of the Registrable Securities owned
by such Holder or Holders, then the Company will:
(a) Notice. Promptly give written notice of the proposed
registration and the Holder's or Holders' request therefor, and any related
qualification or compliance, to all other Holders of Registrable Securities; and
(b) Registration. As soon as practicable, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within twenty (20) days after receipt of such written
notice from the Company; provided, however, that the Company will not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 2.4:
(i) if Form S-3 is not available for such offering by
the Holders;
(ii) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of
less than $500,000.00;
-7-
8
(iii) if the Company will furnish to the Holders a
certificate signed by the President or Chief Executive Officer
of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such Form
S-3 Registration to be effected at such time, in which event the
Company will have the right to defer the filing of the Form S-3
registration statement no more than once during any twelve month
period for a period of not more than one hundred twenty (120)
days after receipt of the request of the Holder or Holders under
this Section 2.4;
(iv) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected one
(1) registration on Form S-3 for the Holders pursuant to this
Section 2.4; or
(v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a
general consent to service of process in effecting such
registration, qualification or compliance.
(c) Expenses. Subject to the foregoing, the Company will
file a Form S-3 registration statement covering the Registrable Securities and
other securities so requested to be registered pursuant to this Section 2.4 as
soon as practicable after receipt of the request or requests of the Holders for
such registration. The Company will pay all expenses incurred in connection with
the first two registrations requested pursuant to this Section 2.4, (excluding
underwriters' or brokers' discounts and commissions), including without
limitation all filing, registration and qualification, printers' and accounting
fees and the reasonable fees and disbursements of one counsel for the selling
Holder or Holders and counsel for the Company, and the Holders will pay such
expenses for any subsequent registration requested pursuant to this Section 2.4,
payable pro rata by each such Holder based on the total number of shares sold by
such Holder in such registration.
(d) Not Demand Registration. Form S-3 registrations will
not be deemed to be demand registrations as described in Section 2.2 hereof.
2.5 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement, the Company
will, as expeditiously as reasonably possible:
(a) Registration Statement. Prepare and file with the
SEC a registration statement with respect to such Registrable Securities and use
its best efforts to cause such registration statement to become effective, and,
upon the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to
ninety (90) days.
(b) Amendments and Supplements. Prepare and file with
the SEC such amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement.
(c) Prospectus. Furnish to the Holders such number of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration.
-8-
9
(d) Blue Sky. Use its best efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as will be reasonably
requested by the Holders, provided that the Company will not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(e) Underwriting. In the event of any underwritten
public offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering. Each Holder participating in such underwriting will also enter into
and perform its obligations under such an agreement.
(f) Notification. Notify each Holder of Registrable
Securities covered by such registration statement at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) Opinion and Comfort Letter. Furnish, at the request
of any Holder requesting registration of Registrable Securities, on the date
that such Registrable Securities are delivered to the underwriters for sale, if
such securities are being sold through underwriters, or, if such securities are
not being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to a majority in
interest of the Holders requesting registration, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a "comfort" letter dated as of such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
2.6 Furnish Information. It will be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 2.2, 2.3 or
2.4 hereof that the selling Holders will furnish to the Company such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as will be required to timely effect
the registration of their Registrable Securities.
2.7 Delay of Registration. No Holder will have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 2.
2.8 Indemnification. In the event any Registrable Securities are
included in a registration statement under Sections 2.2, 2.3 or 2.4 hereof:
(a) By the Company. To the extent permitted by law, the
Company will indemnify and hold harmless each Holder, the partners, officers and
directors of each Holder, any underwriter (as defined in the Securities Act) for
such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Securities Exchange Act
-9-
10
of 1934, as amended, (the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the l934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of
a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to
make the statements therein not misleading; or
(iii) any violation or alleged violation by the Company
of the Securities Act, the 1934 Act, any federal or state
securities law or any rule or regulation promulgated under the
Securities Act, the 1934 Act or any federal or state securities
law in connection with the offering covered by such registration
statement;
and the Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided however, that the
indemnity agreement contained in this Section 2.8(a) will not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent will
not be unreasonably withheld), nor will the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, underwriter
or controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by law,
each selling Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any underwriter and any other Holder selling securities under such
registration statement or any of such other Holder's partners, directors or
officers or any person who controls such Holder within the meaning of the
Securities Act or the 1934 Act, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, underwriter or other such Holder, partner or
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, underwriter or other Holder, partner, officer,
director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 2.8(b)
will not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder, which consent will not be unreasonably withheld; and provided further,
that the total amounts payable in indemnity by a Holder under this
-10-
11
Section 2.8(b) in respect of any Violation will not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises.
(c) Notice. Promptly after receipt by an indemnified
party under this Section 2.8 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
2.8, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party will have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party will have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential conflict of interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, will relieve such indemnifying party of any liability to the
indemnified party under this Section 2.8, but the omission to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 2.8.
(d) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of the Company and Holders are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus), such indemnity agreement will not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and
equitable contribution to joint liability under the Securities Act in any case
in which either (i) any Holder exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 2.8 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 2.8 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling Holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 2.8; then, and in each such case, the Company and
such Holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that such Holder is responsible for the portion represented
by the percentage that the public offering price of its Registrable Securities
offered by and sold under the registration statement bears to the public
offering price of all securities offered by and sold under such registration
statement, and the Company and other selling Holders are responsible for the
remaining portion; provided, however, that, in any such case, (A) no such Holder
will be required to contribute any amount in excess of the public offering price
of all such Registrable Securities offered and sold by such Holder pursuant to
such registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be
-11-
12
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
(f) Survival. The obligations of the Company and Holders
under this Section 2.8 will survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
2.9 "Market Stand-Off" Agreement. Each Holder hereby agrees that
it will not, to the extent requested by the Company or an underwriter of
securities of the Company, sell or otherwise transfer or dispose of any
Registrable Securities or other shares of stock of the Company then owned by
such Holder (other than to donees or partners of the Holder who agree to be
similarly bound) for up to one hundred eighty (180) days following the effective
date of a registration statement of the Company filed under the Securities Act;
provided, however, that each executive officer and director of the Company then
holding Common Stock of the Company enter into substantially the same agreement.
In order to enforce the foregoing covenant, the Company will have the right to
place restrictive legends on the certificates representing the shares subject to
this Section and to impose stop transfer instructions with respect to the
Registrable Securities and such other shares of stock of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
2.10 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, after such time as a public market exists for the Common Stock of
the Company, the Company agrees to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times after the effective date of the first registration under the Securities
Act filed by the Company for an offering of its securities to the general
public;
(b) Use its best efforts to file with the Commission in
a timely manner all reports and other documents required of the Company under
the Securities Act and the 1934 Act (at any time after it has become subject to
such reporting requirements); and
(c) So long as a Holder owns any Registrable Securities,
to furnish to the Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the 1934 Act (at any time
after it has become subject to the reporting requirements of the 1934 Act), a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a Holder to
sell any such securities without registration (at any time after the Company has
become subject to the reporting requirements of the 1934 Act).
2.11 Termination of the Company's Obligations. The Company will
have no obligations pursuant to Sections 2.2 through 2.4 with respect to: (a)
any request or requests for registration made by any Holder on a date more than
eight (8) years after the closing date of the IPO; or (b) any Registrable
Securities proposed to be sold by a Holder in a registration pursuant to Section
2.2, 2.3 or 2.4 hereof if, in the opinion of counsel to the Company, all such
Registrable Securities
-12-
13
proposed to be sold by a Holder may be sold in a three-month period without
registration under the Securities Act pursuant to Rule 144 under the Securities
Act and such Holder holds less than one percent (1%) of the outstanding stock of
the Company.
3. RIGHT OF FIRST OFFER.
3.1 Right of First Offer. Each time after the date hereof that
the Company proposes to offer any shares of, or securities convertible into or
exercisable for any shares of, any class of its capital stock ("Offered
Securities") other than Excluded Securities (as defined below), the Company will
first make an offering of such Offered Securities to the Investors in accordance
with the following provisions:
(a) Delivery of Right of First Offer Notice. The Company
will deliver a notice ("Right of First Offer Notice") to each Investor stating
(i) the Company's bona fide intention to offer such Offered Securities, subject
to the provisions of Section 3.1(b) below, (ii) the number of such Offered
Securities to be offered, and (iii) the price and terms, if any, upon which it
proposes to offer such Offered Securities.
(b) Exercise of Right of First Offer. By written
notification received by the Company, within thirty (30) calendar days after the
Company gives the Right of First Offer Notice, each Investor may elect to
purchase, at the price and on the terms specified in the Right of First Offer
Notice, up to that portion of such Offered Securities which equals such
Investor's Percentage Share (as defined below). For the purpose of this Section
3.1(b), an "Investor's Percentage Share" will be equal to that proportion that
the number of shares of Common Stock issued and held, or issuable upon
conversion of the Series B Stock, Series C Stock, Series D Stock, Series E
Stock, Series F Stock and Series G Stock then issued and held by the relevant
Investor bears to (i) the total number of shares of Common Stock of the Company
then outstanding, plus (ii) the total number of shares of Common Stock of the
Company into which all then outstanding shares of Preferred Stock of the Company
are then convertible, plus (iii) up to a total of 2,000,000 shares of Common
Stock of the Company issued and reserved for issuance under stock purchase and
stock option plans of the Company from the date of its incorporation, plus (iv)
the total number of shares of Common Stock of the Company then issuable under
all then outstanding warrants or then issuable upon conversion of all shares of
Preferred Stock issuable under such warrants. If all Offered Securities that the
Investors are entitled to obtain pursuant to this Section 3.1 are not elected to
be purchased by the Investors as provided in this Section 3.1, the Company may,
during the one hundred twenty (120) day period following the expiration of the
thirty (30) day period provided in the first sentence of this Section 3.1, offer
the remaining unsubscribed portion of such Offered Securities to any person or
persons at a price not less than, and upon terms no more materially favorable,
to the offeree than those specified in the Right of First Offer Notice. If the
Company does not enter into a written agreement for the sale of the Offered
Securities within such one hundred twenty (120) day period, or if such written
agreement is not consummated within thirty (30) days after the execution thereof
by all parties thereto, the right of first offer provided hereunder will be
deemed to be revived and such Offered Securities will not be offered to any
third party unless first reoffered to the Investors in accordance herewith.
(c) Xxxx-Xxxxx Xxxxxx Filings. The Company agrees to
cooperate with the reasonable requests of an Investor purchasing Offered
Securities respecting filings which must be made by the Company under the
Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act in order for such Investor to
purchase such Offered Securities; provided, however, that such obligation of the
Company is conditioned upon such Investor paying to the Company the reasonable
costs and expenses which the Company incurs respecting such filings.
-13-
14
3.2 Excluded Securities. The right of first offer in this
Section 3 will not be applicable to the following (the "Excluded Securities"):
(a) shares of the Company's Common Stock (and/or options, warrants or rights
therefor) issued to employees, officers, or directors of, or contractors,
advisors or consultants to the Company or any subsidiary pursuant to stock
purchase or stock option plans, stock bonuses or awards, warrants, contracts or
other arrangements (collectively, the "Awards") that are approved by (i) one or
more officers of the Company to whom authority to grant the Awards has been
delegated in accordance with the Company's applicable equity incentive plan and
which Award(s) in question are issued to a person who is not then a Director of
the Company or officer of the Company who performs policy-making functions for
the Company or (ii) the Board of Directors of the Company, which approval, in
the case of any shares of the Company's Common Stock (and/or options, warrants
or rights therefor) issued to a Principal Common Shareholder, must include the
approval of at least one Board Designee (as defined below) then a member of the
Board of Directors of the Company; (b) shares of Common Stock issued or issuable
upon the exercise of options or warrants granted on or before the date hereof;
(c) securities offered by the Company to the public pursuant to a registration
statement filed under the Securities Act, including the IPO; (d) securities
issued pursuant to the conversion or exercise of convertible or exercisable
securities which themselves were Excluded Securities when originally issued; (e)
securities issued pursuant to the acquisition of another corporation or entity
by the Company by consolidation, merger, purchase of all or substantially all of
the assets, or other reorganization in which the Company acquires, in a single
transaction or series of related transactions, all or substantially all of the
assets of such other corporation or entity or fifty percent (50%) or more of the
voting power of such other corporation or entity or fifty percent (50%) or more
of the equity ownership of such other entity; (f) shares of Common Stock or
options, warrants or rights therefor issued to equipment lessors, real estate
lessors, banks and other financial institutional lenders to the Company or any
subsidiary in connection with commercial credit arrangements, equipment
financings, real property leases or similar transactions, and to entities in
connection with a contractual relationship of joint venture or strategic
partnering (as such relationship is so determined by the Board in good faith on
a case-by-case basis), in each case pursuant to stock purchase agreements,
options, warrants or rights therefor that are approved by the Board; (g) shares
of the Company's Common Stock or Preferred Stock issued in connection with any
stock split or stock dividend; or (h) the Series B Stock, the Series C Stock,
the Series D Stock, Series E Stock, Series F Stock, Series G Stock or the
Conversion Stock.
3.3 Termination. This right of first offer will terminate (a)
immediately before the closing of the IPO, or (b) upon the acquisition of all or
substantially all the assets of the Company or (c) upon an acquisition of the
Company by another corporation or entity by consolidation, merger or other
reorganization in which the holders of the Company's outstanding voting stock
immediately prior to such transaction own, immediately after such transaction,
securities representing less than fifty percent (50%) of the voting power of the
corporation or other entity surviving such transaction pursuant to this Section
3.
4. RIGHT OF CO-SALE.
4.1 Purchase Offer Notice. If one or more of the Common Holders
listed in Exhibit B hereto receive one or more bona fide offers (collectively,
the "Purchase Offer") that, if consummated, would result in the transfer by any
single Common Holder of shares of the Company's Common Stock to any persons
(individually a "Purchase Offeror" and collectively, if there is more than one
offeror at the time, the "Purchase Offerors"), which persons have the apparent
ability and intent to purchase from the Common Holder(s) such shares of the
Common Stock then held by such
-14-
15
Common Holder(s), upon specific terms and conditions (including a specified
purchase price payable in cash or other property), and if the Common Holder(s)
desire to accept such Purchase Offer, then the Common Holder(s) will promptly
notify the Company and the Investors in writing (a "Purchase Offer Notice") of
the terms and conditions of such Purchase Offer, identifying the Purchase
Offeror(s) therein.
4.2 Investors' Right of Co-Sale. Each Investor will have the
right, exercisable upon written notice to the Common Holder(s) within twenty
(20) calendar days after such Investor's receipt of the Purchase Offer Notice of
the Purchase Offer, to participate in the Common Holder(s)' sale of such Common
Stock pursuant to the specified terms and conditions of such Purchase Offer,
except that such Investor may substitute that number of shares of then
outstanding Series B Stock, Series C Stock, Series D Stock, Series E Stock,
Series F Stock and Series G Stock convertible into the number of shares of
Common Stock that such Investor would otherwise be entitled to sell pursuant to
such Investor's exercise of its right of co-sale hereunder.
4.3 Terms and Conditions of Co-Sale Right. The right of co-sale of each
Investor hereunder will be subject to the following terms and conditions:
(a) Investors' Pro Rata Share. Each Investor may sell
all or any part of that number of shares of Common Stock (or then outstanding
Series B Stock, Series C Stock, Series D Stock, Series E Stock, Series F Stock
and Series G Stock, on an as if converted to Common Stock basis) of the Company
held by such Investor as is equal to the product obtained by multiplying (i) the
aggregate number of shares of Common Stock covered by the Purchase Offer
included in the Purchase Offer Notice by (ii) a fraction, the numerator of which
will be the number of shares of Common Stock of the Company at the time owned by
such Investor and the denominator of which will be the combined number of shares
of Common Stock of the Company at the time owned by the selling Common Holder
and all Investors (such number referred to herein as the "Investor's Pro Rata
Share"). For purposes of making such computation, the selling Common Holder(s)
and each Investor will be deemed to own the number of shares of Common Stock
that are outstanding and held by such parties plus the number of shares of
Common Stock into which all then outstanding Series B Stock, Series C Stock,
Series D Stock, Series E Stock, Series F Stock and/or Series G Stock held by
such Common Holder(s) or Investor is at the time convertible.
(b) Procedure. Each Investor may effect its right of
co-sale in the sale by delivering to the Common Holder(s), for transfer to the
Purchase Offeror(s) one or more certificates, properly endorsed for transfer,
that represent:
(i) the number of shares of Common Stock that such
Investor elects to sell pursuant to this Section 4; or
(ii) that number of shares of then outstanding Series B
Stock, Series C Stock, Series D Stock, Series E Stock, Series F
Stock and/or Series G Stock that is at such time convertible
into the number of shares of Common Stock that such Investor
elects to sell pursuant to this Section 4 or that is at such
time convertible into that number of shares of Common Stock
issuable on conversion of the then outstanding Series B Stock,
Series C Stock, Series D Stock, Series E Stock, Series F Stock
and/or Series G Stock that such Investor would otherwise be
entitled to sell pursuant to its rights of co-sale hereunder;
provided, however, that if the Purchase Offeror(s) object to the
delivery of Series B Stock, Series C Stock, Series D Stock,
Series E Stock, Series F Stock and/or Series G Stock in lieu of
Common Stock, such
-15-
16
Investor may convert such stock and deliver Common Stock as
provided in subsection (i) of this Section 4.3(b).
(c) Consummation. The stock certificates that an
Investor delivers to the Common Holder(s) pursuant to this Section 4 in exercise
of such Investor's right of co-sale hereunder will be transferred by the Common
Holder(s) to the Purchase Offeror in consummation of the sale of the Common
Holder Stock pursuant to the terms and conditions specified in the Purchase
Offer Notice to the Investors, and the Common Holder(s) will promptly thereafter
remit to such Investor that portion of the sale proceeds to which such Investor
is entitled by reason of its participation in such sale.
(d) No Limitation on Further Co-Sale. The exercise or
non-exercise of the rights of co-sale of any Investor hereunder to participate
in one or more sales of Common Stock made by the Common Holder(s) will not
adversely affect such Investor's rights to participate, pursuant to its rights
of co-sale hereunder, in subsequent sales of Common Stock by any Common Holder.
(e) Exclusions. The rights of co-sale hereunder of the
Investors will not pertain or apply to (i) any pledge of the Common Stock made
by the Common Holder(s) that creates only a security interest, or (ii) any
transfer to the ancestors, descendants or spouse, or to trusts for the benefit
of any of the aforementioned persons, of the Common Holder(s), or (iii) any bona
fide gift; provided the pledgee, transferee or donee will furnish the Company
and the Investors with a written agreement to be bound by and comply with all
provisions of Section 4 of this Agreement applicable to the relevant
transferring Common Holder, or (iv) the sale by such Common Holder of any
Preferred Stock of the Company then held by such Common Holder (but will apply
to Common Stock issued upon any conversion of such Preferred Stock and then held
as Common Stock by such Common Holder), or (v) the sale by a Common Holder of
such Common Holder's Common Stock to the public pursuant to a registration
statement filed under the Securities Act, including the IPO, or (vi) the sale or
transfer by a Common Holder of an aggregate of 100,000 shares of the Common
Stock of the Company in one or more transactions.
(f) Prohibited Transfers. If any Common Holder sells any
Common Stock in contravention of the co-sale rights of any Investor under this
Agreement (a "Prohibited Transfer"), such Investor will have the right to sell
to the Common Holder, and the Common Holder will purchase from such Investor, a
number of shares of Common Stock of the Company (either directly or through
delivery of then outstanding Series B Stock, Series C Stock, Series D Stock,
Series E Stock, Series F Stock and/or Series G Stock held by such Investor), not
to exceed such Investor's Pro Rata Share, equal to the number of shares of
Common Stock sold by the Common Holder in contravention of such rights, on the
following terms and conditions:
(i) Price Per Share. The price per share at which such
shares are to be sold by such Investor to the Common Holder will
be equal to the price per share paid by the third-party
purchaser or purchasers of the Common Stock to the Common
Holder(s).
(ii) Delivery of Investor's Certificates to Common
Holder. Such Investor will deliver to the Common Holder, within
ninety (90) days after such Investor has received notice from
the Common Holder of, or otherwise become aware of, the
Prohibited Transfer, the certificate or certificates
representing shares to be sold
-16-
17
by such Investor to the Common Holder hereunder, each
certificate to be properly endorsed for transfer.
(iii) Payment by Common Holder to Investor. The Common
Holder will, upon receipt of the certificates for the shares to
be sold to the Common Holder by such Investor hereunder, pay the
aggregate purchase price therefor, by certified check or bank
draft made payable to the order of such Investor, and will
reimburse such Investor for all reasonable additional expenses,
including reasonable legal fees and expenses, incurred by such
Investor in effecting such purchase and resale.
(g) Xxxx-Xxxxx Xxxxxx Filings. The Company agrees to
cooperate with the reasonable requests of an Investor exercising its right of
co-sale hereunder respecting filings which must be made by the Company under the
Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act in order for such Investor to so
exercise its right of co-sale; provided, however, that such obligation of the
Company is conditioned upon such Investor paying to the Company the reasonable
costs and expenses which the Company incurs respecting such filings.
4.4 Termination of Right of Co-Sale. The right of co-sale of the
Investors hereunder will terminate immediately prior to the closing of the IPO,
if not terminated earlier by termination of this Agreement.
4.5 Legended Certificates.
(a) Legend. Each certificate representing shares of
Common Stock now owned by the Common Holder(s) or owned by them while the right
of co-sale hereunder then is in effect, will be endorsed with a legend
substantially in the following form:
"THE SALE OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN
INVESTORS' RIGHTS AGREEMENT BY AND BETWEEN THE HOLDER AND
INVESTORS IN THE CAPITAL STOCK OF THE ISSUER. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE ISSUER."
(b) Removal of Legend. The legend required under this Section
4.5 will be removed upon termination of this Agreement.
5. VOTING AGREEMENT.
5.1 Election of Board of Directors.
(a) Voting; Board Composition. During the term of this
Agreement, each Investor and each Principal Common Shareholder agrees to vote
all shares of capital stock of the Company now or hereafter directly or
indirectly owned (of record or beneficially) by such Investor or Principal
Common Shareholder in such manner as may be necessary to elect (and maintain in
office) as members of the Company's Board of Directors:
(i) two (2) individuals designated from time to
time in a writing delivered to the Company and to the Principal Common
Shareholders signed by
-17-
18
Investors who, at the time in question, hold then outstanding
shares of Series B Stock, Series C Stock and/or Common Stock
issued upon conversion of Series B and/or Series C Stock
representing at least a majority of the voting power of all
outstanding shares of Series B Stock, Series C Stock and Common
Stock issued upon conversion of Series B Stock and/or Series C
Stock held by all Investors,
(ii) one (1) individual designated from time to time in
a writing delivered to the Company and to the Principal Common
Shareholders signed by Investors who, at the time in question,
hold then outstanding shares of Series D Stock and/or Common
Stock issued upon conversion of Series D Stock representing at
least a majority of the voting power of all outstanding shares
of Series D Stock and Common Stock issued upon conversion of
Series D Stock held by all Investors, and
(iii) one (1) individual designated from time to time in
a writing delivered to the Company and to the Principal Common
Shareholders signed by (a) Quantum Industrial Partners, LDC so
long as 2,500,000 shares of Series F Preferred and/or Common
Stock issued upon conversion of Series F Stock are held at the
time in question by Quantum Industrial Partners, LDC and related
parties or (b) at and following such time that Quantum
Industrial Partners, LDC and related parties no longer hold
2,500,000 shares of Series F Preferred and/or Common Stock
issued upon conversion of Series F Stock, Investors who, at the
time in question, hold then outstanding shares of Series F Stock
and/or Common Stock issued upon conversion of Series F Stock
representing at least a majority of the voting power of all
outstanding shares of Series F Stock and Common Stock issued
upon conversion of Series F Stock held by all Investors.
For purposes of this Agreement: (i) any individual who is designated for
election to the Company's Board of Directors pursuant to the foregoing
subsection 5.1(a)(i) is hereinafter referred to as a "Series B/C Board
Designee"; (ii) any individual who is designated for election to the Company's
Board of Directors pursuant to subsection 5.1(a)(ii) is hereinafter referred to
as a "Series D Board Designee"; (iii) any individual who is designated for
election to the Company's Board of Directors pursuant to subsection 5.1(a)(iii)
is hereinafter referred to as a "Series F Board Designee", and collectively,
with the Series B/C Board Designee and Series D Board Designee, are hereinafter
referred to as the "Board Designees"; and (iv) the individuals and/or entities
who have the right hereunder to designate the Board Designees for election to
the Company's Board of Directors pursuant to the foregoing sentence are
hereinafter referred to as the "Designators".
(b) Initial Board Members. The initial Series B/C Board
Designees will be T. Xxxxx Xxxxxx and Xxxxxxx Xxx and the initial Series F
Designee will be Xxxx XxXxxxx.
(c) Changes in Board Designees. From time to time during the
term of this Agreement, the Designators may, in their sole discretion, designate
a new Board Designee for election to a Board seat for which such Designators are
entitled to designate the Board Designee under Section 5.1(a) hereof (whether to
replace a prior Board Designee or to fill a vacancy in such Board seat);
provided such designation of a Board Designee is approved in a writing signed by
Designators who are entitled to designate such Board Designee under Section
5.1(a), in which case such election of a new Board Designee will be binding on
all Investors and Principal Common Shareholders. In the event of such a
designation of a Board Designee under
-18-
19
this Section 5.1(c), the Investors and the Principal Common Shareholders will
vote their shares of the Company's capital stock as provided in Section 5.1(a)
to cause the election to the Company's Board Directors of any new Board Designee
or Designees so designated for election to the Company's Board of Directors by
the Designators.
(d) Notice; Cumulative Voting. The Company will promptly
give each of the Investors and the Principal Common Shareholders written notice
of any change in composition of the Company's Board of Directors and of any
proposal by the Designators to elect a new Board Designee or Designees. In any
election of Directors pursuant to this Section 5, the Investors and the
Principal Common Shareholders will vote their shares in a manner sufficient to
elect to the Company's Board of Directors the Board Designee or Designees to be
elected thereto as provided in this Section 5, utilizing cumulative voting if
and to the extent necessary to do so.
5.2 Further Assurances. Each of the Investors and the Principal
Common Shareholders agrees not to vote any shares of Company Stock, or to take
any other actions, that would in any manner defeat, impair, be inconsistent with
or adversely affect the stated intentions of the parties under Section 5 of this
Agreement.
5.3 Transferees; Legends on Certificates.
(a) Effect on Transferees. Each transferee or assignee
of any shares of capital stock of the Company from any Investor or Principal
Common Shareholder will be bound by and subject to the terms and conditions of
this Section 5, and the Company will require, as a condition precedent to the
transfer of any shares of capital stock of the Company subject to this Section
5, that the transferee agree in writing to be bound by, and subject to, all the
terms and conditions of this Section 5.
(b) Legend. The Investors and the Principal Common
Shareholders agree that all Company share certificates now or hereafter held by
them that represent shares of capital stock of the Company subject to this
Section 5 will be imprinted with the following legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
AGREEMENTS AND RESTRICTIONS WITH REGARD TO THE VOTING OF SUCH
SHARES AND THEIR TRANSFER, AS PROVIDED IN THE PROVISIONS OF AN
INVESTORS' RIGHTS AGREEMENT, A COPY OF WHICH IS ON FILE IN THE
OFFICE OF THE SECRETARY OF THE CORPORATION."
5.4 Term. The provisions of Section 5 of this Agreement will
terminate upon the first to occur of the following:
(a) The closing of the IPO; or
(b) Immediately prior to the closing of (i) any
consolidation or merger of the Company with or into any other corporation or
corporations in which the holders of the Company's outstanding shares
immediately before such consolidation or merger do not, immediately after such
consolidation or merger, retain stock representing a majority of the
-19-
20
voting power of the surviving corporation of such consolidation or merger or
stock representing a majority of the voting power of a corporation that wholly
owns, directly or indirectly, the surviving corporation of such consolidation or
merger; (ii) the sale, transfer or assignment of securities of the Company
representing a majority of the voting power of all the Company's outstanding
voting securities by the holders thereof to an acquiring party in a single
transaction or series of related transactions; or (iii) any other sale, transfer
or assignment of securities of the Company representing over fifty percent (50%)
of the voting power of the Company's then outstanding voting securities by the
holders thereof to an acquiring party.
6. ASSIGNMENT.
6.1 Information Rights. Notwithstanding anything herein to the
contrary, the rights of an Investor under Section 1.1 hereof may be assigned
only to a party who acquires from an Investor (or an Investor's permitted
assigns) at least that number of shares of Series B Stock, Series C Stock,
Series D Stock, Series E Stock, Series F Stock, Series G Stock and/or an
equivalent number (on an as-converted basis) of shares of Conversion Stock
described in Section 1.1 hereof, respectively.
6.2 Registration Rights; Rights of First Offer; Rights of
Co-Sale. Notwithstanding anything herein to the contrary, the rights of a Holder
or an Investor under Sections 2, 3 and 4 hereof may be assigned only to a party
who acquires at least 200,000 shares of (i) Series B Stock issued under the
Series B Agreement, and/or (ii) Series C Stock issued under the Series B
Agreement, and/or (iii) Series D Stock issued under the Series D Agreement,
and/or (iv) Series E Stock issued under the Series E Agreement, and/or (v)
Series F Stock issued under the Series F Agreement, and/or (vi) Series G Stock
issued under the Series G Agreement, and/or (vii) an equivalent number (on an
as-converted basis) of Registrable Securities issued upon conversion thereof;
provided, however that no party may be assigned any of the foregoing rights
unless the Company is given written notice by the assigning party at the time of
such assignment stating the name and address of the assignee and identifying the
securities of the Company as to which the rights in question are being assigned;
and provided further that any such assignee will receive such assigned rights
subject to all the terms and conditions of this Agreement, including without
limitation the provisions of Section 5. Notwithstanding the foregoing, such
rights may be transferred by a Holder to a limited partner, general partner or
other affiliate of such Holder at any time and for any number of shares of
Registrable Securities.
7. GENERAL PROVISIONS.
7.1 Termination of This Agreement. This Agreement may be
terminated voluntarily by written agreement of (1) the Company and (2) the
holders of then outstanding shares of Series B Stock, Series C Stock, Series D
Stock, Series E Stock, Series F Stock, Series G Stock and shares of Conversion
Stock issued upon the conversion of Series B Stock, Series C Stock, Series D
Stock, Series E Stock, Series F Stock or Series G Stock representing at least
sixty-six and two-thirds percent (66.67%) of the voting power of all such shares
together. Such termination will be binding upon all holders, if any, of then
outstanding shares of Series B Stock, Series C Stock, Series D Stock, Series E
Stock, Series F Stock, Series G Stock and Conversion Stock who do not sign such
termination agreement.
7.2 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement will be given in writing and will be deemed
effectively given upon personal delivery to the party to be notified, or three
(3) days after deposit with the United States Post Office, by
-20-
21
registered or certified mail, postage prepaid, or by deposit with a nationally
recognized courier service such as FedEx, or by facsimile with confirmed receipt
and addressed to the party to be notified at the address indicated for the
Company on the signature page hereof as to the Company and the Principal Common
Shareholders and on Exhibit A as to each Investor, or at such other address as
any party may designate by giving at least ten (10) days advance written notice
to all other parties, pursuant to this Section 7.2.
7.3 Entire Agreement. This Agreement, together with all Exhibits
and schedules hereto, constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter hereof. This
Agreement amends, restates, replaces and terminates in its entirety the Fourth
Restated Rights Agreement.
7.4 Amendment and Waiver. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of (1) the Company and (2) persons (and/or any of their
permitted successors or assigns) holding then outstanding shares of Series B
Stock, Series C Stock, Series D Stock, Series E Stock, Series F Stock, Series G
Stock and shares of Conversion Stock issued upon the conversion of Series B
Stock, Series C Stock, Series D Stock, Series E Stock, Series F Stock or Series
G Stock representing at least sixty-six and two-thirds percent (66.67%) of the
voting power of all such shares together; provided, however, that any amendment
of Sections 2.3, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 7.2, 7.4, 7.6, 7.7, 7.8,
7.13, 7.14, 7.15 and/or 7.16 of this Agreement or the waiver of the observance
thereof (either generally or in a particular instance and either retroactively
or prospectively) may be effected only with the written consent of (1) the
Company and (2) persons (and/or any of their permitted successors or assigns)
holding then outstanding shares of Series B Stock, Series C Stock, Series D
Stock, Series E Stock, Series F Stock, Series G Stock and shares of Conversion
Stock issued upon the conversion of Series B Stock, Series C Stock, Series D
Stock, Series E Stock, Series F Stock or Series G Stock (the "Investors Shares")
and/or the IBM Note and/or shares of Registrable Securities issued upon
conversion of the IBM Note, representing at least sixty-six and two-thirds
percent (66.67%) of the voting power of the total of all the Investors Shares
plus the Registrable Shares issuable upon conversion of the IBM Note; provided
further, that no such amendment or waiver will increase the obligation of any
Investor, any Principal Common Shareholder or any Holder hereunder without the
specific written consent of such Investor, such Principal Common Shareholder or
such Holder, as applicable. Any amendment or waiver effected in accordance with
this Section 7.4 will be binding upon each Investor, each Principal Common
Shareholder, each Holder, each permitted successor or assignee of such Investor,
Principal Common Shareholder or Holder, and the Company. Notwithstanding the
foregoing, no amendment or supplement to this Agreement may be made without the
consent of each party affected by such amendment or supplement if such amendment
or supplement would (i) impose any new obligation on such party under this
Agreement, (ii) increase any existing obligations of such party under this
Agreement or (iii) diminish or waive the rights of such party under this
Agreement without similarly diminishing or waiving the rights of all similarly
situated parties.
7.5 New Investors. Notwithstanding anything herein to the
contrary, if pursuant to Section 2.2 of the Series G Agreement, additional
parties may purchase shares of Series G Stock as "New Investors" thereunder,
then each such New Investor shall become a party to this Agreement as an
"Investor" hereunder, without the need for any consent, approval or signature of
any Investor when such New Investor has both: (i) purchased shares of Series G
Stock under the Series G
-21-
22
Agreement and paid the Company all consideration payable for such shares, and
(2) executed one or more counterpart signature pages to this Agreement as an
"Investor" with the Company's consent.
7.6 Governing Law. This Agreement will be governed by and
construed under the internal laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California, without reference to principles of conflict of laws or choice
of laws.
7.7 Severability. If any provision of this Agreement is held to
be unenforceable under applicable law, such provision will be excluded from this
Agreement and the balance of the Agreement will be interpreted as if such
provision were so excluded and will be enforceable in accordance with its terms.
7.8 Third Parties. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their successors and assigns, any rights or remedies under or by reason of
this Agreement.
7.9 Successors And Assigns. The terms and conditions of this
Agreement will inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
7.10 Headings. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules will, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
7.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.12 Costs And Attorneys' Fees. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party will
recover all of such party's costs and attorneys' fees incurred in each such
action, suit or other proceeding, including any and all appeals or petitions
therefrom.
7.13 No Finder's Fees. Each party represents that it neither is
nor will be obligated for any finder's or broker's fee or commission in
connection with this transaction. Each Investor will indemnify and hold harmless
the Company from any liability for any commission or compensation in the nature
of a finders' or broker's fee (and any asserted liability) for which such
Investor or any of its officers, partners, employees, or representatives is
responsible. The Company will indemnify and hold the Investors harmless from any
liability for any commission or compensation in the nature of a finder's or
broker's fee (and any asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
7.14 Adjustments for Stock Splits, Etc. Wherever in this
Agreement there is a reference to a specific number of shares of Common Stock or
Preferred Stock of the Company of any class or series, then, upon the occurrence
of any subdivision, combination or stock dividend of such class or series of
stock, the specific number of shares so referenced in this Agreement will
automatically be proportionally adjusted to reflect the effect on the
outstanding shares of such class or series of stock by such subdivision,
combination or stock dividend. On May 12, 1998, the
-22-
23
Company effected a two for one split of the outstanding shares of its Common
Stock. Without limiting the generality of the foregoing, in order to reflect
that stock split, each reference in this Agreement to a specific number of
shares of Common Stock of the Company shall be multiplied by two effective as of
the date of this Agreement, but each reference in this Agreement to a specific
number of shares of Preferred Stock of the Company shall not be so multiplied by
two and shall remain a reference to that number of shares effective as of the
date of this Agreement.
7.15 Aggregation of Stock. All shares held or acquired by
entities or persons, which are affiliated or related or as to which a single
third party has common investment discretion, will be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
7.16 Further Assurances. From and after the date of this
Agreement, upon the request of any Investor or the Company, the Company and the
Investors, and the Principal Common Shareholders as to Section 5 hereof, will
execute and deliver such instruments, documents or other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
[THE REST OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLANK]
-23-
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
TRANSMETA CORPORATION: INVESTOR:
By: /s/ XXXXX X. XXXXXX
-------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxx Print Investor's Name
------------------------------
Title: CEO
-----------------------------
Date signed: By:
----------------------- ---------------------------------
Address: Name:
0000 Xxxxxxx Xxxxxx -------------------------------
Xxxxx Xxxxx, XX 00000 Title:
Attention: President ------------------------------
Facsimile: 000-000-0000 Date signed:
------------------------
[SIGNATURE PAGE TO TRANSMETA CORPORATION
FIFTH RESTATED INVESTORS' RIGHTS AGREEMENT]
-24-
25
COMMON HOLDERS:
/s/ XXXXX X. XXXXXX /s/ XXXX X. XXXX
----------------------------------- ------------------------------------
Xxxxx X. Xxxxxx Xxxx X. Xxxx
/s/ XXXXX X. XXXXXX /s/ XXXXXXXXX X. XXXXXX
----------------------------------- ------------------------------------
Xxxxx X. Xxxxxx Xxxxxxxxx X. Xxxxxx
/s/ XXXXXXX X. & XXXX X. XXXXX /s/ XXXXXX X. XXXXXX
----------------------------------- ------------------------------------
FBO Xxxxxxx X. & Xxxx X. Xxxxx Xxxxxx X. Xxxxxx
Trust U/A dtd 8-30-89
/s/ XXXXXX X. XXXXXXXXX & /s/ XXXX X. XXXXXXXX &
XXXXX X. XXXXXXXXX XXXXXXXX XXXXXXXX
----------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxxxxx and Xxxxxxxx
Xxxxx X. Xxxxxxxxx Xxxxxxxx as Trustees of the Xxxxxxxx
Revocable Trust dated May 1, 1986
/s/ XXXXXX X. XXXXX & /s/ XXXXXX XXXXX
XXXXX M. E. XXXXX ------------------------------------
----------------------------------- Xxxxxx Xxxxx
Xxxxxx X. Xxxxx and
Xxxxx M. E. Xxxxx
/s/ XXXXXXXX X. ZYNER & /s/ XXXX XXXXX
XXXXXX X. ZYNER ------------------------------------
----------------------------------- Xxxx Xxxxx
Xxxxxxxx X. Zyner
and Xxxxxx X. Zyner
/s/ XXXXXX X. XXXX & /s/ XXXXXXXX XXXXXXXXX
XXXXXXX XXXXXXXX ------------------------------------
----------------------------------- Xxxxxxxx Xxxxxxxxx
Xxxxxx X. Xxxx and
Xxxxxxx Xxxxxxxx
/s/ XXXXXX X. XXXXXX /s/ XXXXXX XXXXXXXXX
----------------------------------- ------------------------------------
Xxxxxx X. Xxxxxx Xxxxxx Xxxxxxxxx
/s/ XXXXXXX XXXXXXXXX
------------------------------------
Xxxxxxx Xxxxxxxxx
[SIGNATURE PAGE TO TRANSMETA CORPORATION
FIFTH RESTATED INVESTORS' RIGHTS AGREEMENT - CONT.]
-25-
26
/s/ XXXX XXXXXXX
------------------------------------
Xxxx Xxxxxxx
/s/ XXXX XXXXXXX
------------------------------------
Xxxx Xxxxxxx as custodian for Xxxxxx
Xxxxxxxxx under the Texas Uniform
Transfers to Minors Act
/s/ XXXX XXXXXXX
------------------------------------
Xxxx Xxxxxxx as custodian for Xxxxx
Xxxxxxxxx under the Texas Uniform
Transfers to Minors Act
/s/ XXXXX XXX
------------------------------------
Xxxxx Xxx
/s/ XXXXXXXXXX XXXXXXX
------------------------------------
Xxxxxxxxxx Xxxxxxx
/s/ XXXXX XXXXXX
------------------------------------
Xxxxx Xxxxxx
[SIGNATURE PAGE TO TRANSMETA CORPORATION
FIFTH RESTATED INVESTORS' RIGHTS AGREEMENT - CONT.]
-26-
27
PRINCIPAL COMMON SHAREHOLDERS:
/s/ XXXXX X. XXXXXX /s/ XXXX X. XXXX
---------------------------------- ------------------------------------------
Xxxxx X. Xxxxxx Xxxx X. Xxxx
/s/ XXXXX X. XXXXXX /s/ XXXXXXXXX X. XXXXXX
---------------------------------- ------------------------------------------
Xxxxx X. Xxxxxx Xxxxxxxxx X. Xxxxxx
/s/ XXXXXXX X. & XXXX X. LAID /s/ XXXXXX X. XXXXXX
---------------------------------- ------------------------------------------
FBO Xxxxxxx X. & Xxxx X. Laid Xxxxxx X. Xxxxxx
Trust U/A dtd 8-30-89
/s/ XXXX X. XXXXXXXX and XXXXXXXX XXXXXXXX
------------------------------------------
Xxxx X. Xxxxxxxx and Xxxxxxxx
Xxxxxxxx as Trustees of the Xxxxxxxx
Revocable Trust dated May 1, 1986
/s/ XXXXXX XXXXX
------------------------------------------
Xxxxxx Xxxxx
/s/ XXXX XXXXX
------------------------------------------
Xxxx Xxxxx
[SIGNATURE PAGE TO TRANSMETA CORPORATION
FIFTH RESTATED INVESTORS' RIGHTS AGREEMENT - CONT.]
-27-
28
EXHIBIT A
INVESTORS
Xxxxx X. Xxxxx
America Online
Xxxxxx X. Xxxxxxx
Attractor Institutional LP
Attractor LP
Attractor Offshore Ltd.
Attractor QP LP
Attractor Ventures LLC
Bayview Investors, Ltd.
Brilliant World Limited
Compal Electronics, Inc.
Consolidated Overseas Incorporation
CPQ Holdings, Inc.
Credit Suisse First Boston Equity Partners (Bermuda), L.P.
Credit Suisse First Boston Equity Partners, L.P.
Credit Suisse First Boston Finders and Screeners, L.P.
Credit Suisse First Boston U.S. Executive Advisors, L.P.
Xxxxxxxx X. Xxxxxx
Cuttyhunk Fund Ltd.
Xxxxx X. Xxxxxx
DB Ventures TMT LLC
Xxxxxx Xxxx, Trustee, U/T/A Dated 3/2/00
Xxxx X. Xxxx
Duquesne Fund, L.P.
EMA Private Equity Fund 1999, L.P.
Enrichment I Venture Capital Corp.
Xxxx Xxxxxxxxx
eSamsung Corporation
F&W Investments 2000
Five Points Fund L.P.
Five Points Offshore Fund, Ltd.
Xxxxxxxxx Xxxxx
Gateway Companies, Inc.
Xxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxxx
Invemed Catalyst Fund, L.P.
Invemed Fund, L.P.
Xxxxxxx Xxxxxxxxx
Xxx Xxxxx
Xxxxxxx X. Xxx
Xxxx X. Xxxxxxx
Xxxxxx Capital II
Orcland Inc.
Phoenix Technologies Ltd.
Quanta Computer, Inc.
Quantum Partners LDC
Xxx Xxxx
Xxxxxxx X. Xxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx, Trustee, U/D/T 3/13/85
Samsung Electronics Co., Ltd.
SFM Domestic Investments LLC
Steeler Fund, Ltd.
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxx
Sunsino International Development Associate Inc.
Supreme Image Limited
The Raptor Global Portfolio Ltd.
Tonga Partners, X.X.
Xxxxx BVI Futures, Ltd.
Tudor Private Equity Fund, X.X.
Xxx Xxxxxxx Funds
Vulcan Ventures Inc.
Xxxxx, Xxxx & Xxxxx Venture Associates IV Cayman, X.X.
Xxxxx, Xxxx & Xxxxx Venture Associates IV, L.L.C.
Wen-xxx Xxxx
WIIG Japan Partners II, L.P.
Xxxxxxx X. Xxxxxxxxxx
WPG Enterprise Fund III, L.L.C.
WPG Information Sciences Entrepreneur Fund, L.P.
WT Technology
29
EXHIBIT B
COMMON HOLDERS
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
FBO Xxxxxxx X. & Xxxx X. Xxxxx Trust
U/A dtd 8-30-89
Xxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxx and Xxxxx M. E. Xxxxx
Xxxxxxxx B. Zyner and Xxxxxx X. Zyner
Xxxxxx X. Xxxx and Xxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxx
Xxxxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx and Xxxxxxxx Xxxxxxxx as Trustees of the Xxxxxxxx Revocable
Trust dated May 1, 1986
Xxxxxx Xxxxx
Xxxx Xxxxx
Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx as custodian for Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxx as custodian for Xxxxx Xxxxxxxxx
Xxxxx Xxx
Xxxxxxxxxx Xxxxxxx
Xxxxx Xxxxxx
30
EXHIBIT C
PRINCIPAL COMMON HOLDERS
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
FBO Xxxxxxx X. & Xxxx X. Xxxxx Trust
U/A dtd 8-30-89
Xxxx X. Xxxx
Xxxxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx and Xxxxxxxx Xxxxxxxx as Trustees of the Xxxxxxxx Revocable
Trust dated May 1, 1986
Xxxxxx Xxxxx
Xxxx Xxxxx
